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Madhya Pradesh High Court · body

2009 DIGILAW 523 (MP)

Raju Minda v. State of M. P.

2009-04-20

S.R.WAGHMARE

body2009
ORDER 1. By this revision petition, the petitioner has challenged order dated 3.3.2009 passed by Special Judge, (under NDPS Act), Mandsaur in ST No. 2/2009 framing charges for offence under section 8/21-B of the NDPS Act. 2. Counsel for the petitioner had drawn my attention in the impugned order framing charges and stated that 10 gms. smack or heroin was recovered from the possession of the petitioner. Despite which offence has been registered under section 8/21- B of the NDPS Act; looking to the quantity, counsel has stated that actually the Court should have framed charges for offence u/s 21-A of the NDPS Act which is an offence for possession of less than small quantity of a narcotic drug. Counsel also relied on E Micheal Raj v. Intelligence Officer, Narcotic Control Bureau, 2008 CrLJ 2250 whereby the apex Court had held that offence under section 21 of the NDPS Act, imposition of sentence which has to be based on content of offending drug in mixture and not on weight of the mixture as such. Stating that in the said case 250 gms. heroin or more was only punishable u/s 21-B of the NDPS Act, counsel prayed for setting aside the impugned order since the per percentage of content of the heroin in the narcotic substance was found to be less than the schedule prescribed. Counsel also stated that, in the present case, the FSL report indicated that the quantity analyzed only 19.19% diacetylmorphine in the contraband seized from the possession of the petitioner and offence has been framed under section 8/21- B but it falls within the ambit of section 8/21-A of the NDPS Act. 3. On the other hand, Shri G.S. Chouhan, learned Government Advocate appearing for the respondent State has supported the impugned judgment of the lower Court stating that at the time of framing of charge the report of the FSL could not be considered and also stated that the revision is not maintainable, hence prayed for dismissal of the revision. 4. Counsel for the petitioner has further stated that the petitioner unnecessarily undergoing the litigation and the offence is not made out and prays that it would be profitable to remand the matter to the Lower Court. 5. 4. Counsel for the petitioner has further stated that the petitioner unnecessarily undergoing the litigation and the offence is not made out and prays that it would be profitable to remand the matter to the Lower Court. 5. On considering the above submissions and on perusal of the impugned order framing charge, I find that the lower Court has not considered the contents of the contraband article seized from the possession of the petitioner. Under these circumstances, in the interest of justice, I find that the matter requires re-consideration. Hence, the impugned order is set aside. The trial Court is directed to decide the matter of framing of charge against the accused petitioner for offence under section 8121-B of the NDPS Act afresh. 6. It is made clear that this Court is not making any order on merits. The trial Court shall consider the framing of the charge in the light of E.Micheal (supra) and come to its own conclusion and in the result if it finds that offence under section 21-B is still made out, it shall continue to frame the charges under section 21-B. If however, on considering the FSL report in the light of the direction of the apex Court the charges are not made out, it shall frame charges in accordance with law u/s 21-A of the NDPS Act. Let the whole exercise be done within a period of one month from the date of receipt of this order. 7.With these directions and observations, the revision petition is allowed. A copy of this order be sent to the trial Court for compliance.